Sutter v. Hutchings

• Citation: 254 Ga. 194,327 S.E.2d 716
• Decision Date: 14 March 1985
• Docket Number: Nos. 41527,41528,s. 41527
• Parties: SUTTER et al. v. HUTCHINGS et al. TURNER et al. v. HUTCHINGS et al.
• Court: Supreme Court of Georgia

Page 716

327 S.E.2d 716

254 Ga. 194

SUTTER et al. v. HUTCHINGS et al.

TURNER et al. v. HUTCHINGS et al.

Nos. 41527, 41528.

Supreme Court of Georgia.

March 14, 1985.

Rehearing Denied March 28, 1985.

Greene, Buckley, DeRieux & Jones, Edward D. Buckley III, Burt DeRieux, Steven J. Misner, for appellants (case no. 41527).

Powell, Goldstein, Frazer & Murphy, E. A. Simpson, Jr., William G. Leonard, for appellants (case no. 41528).

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Jonathan M. Engram, for appellees.

Parks, Jackson & Howell, Bernard Parks, Goodman & Bush, James E. Goodman, F. Clay Bush, amici curiae.

HILL, Chief Justice.

We granted certiorari to decide the following question: Would a jury be authorized to find that a person who furnished alcohol to a noticeably intoxicated person under the legal drinking age, knowing that such person would soon be driving his or her car, is liable in tort to a third person injured by the negligence of the intoxicated driver? The Court of Appeals held that the injured person's widow and estate have no cause of action against one who furnished the alcohol. Sutter v. Hutchings, 172 Ga.App. 777, 325 S.E.2d 384 (1984). The evidence, construed in favor of plaintiff on Mrs. Susan Hutchings permitted her 17 year old daughter, Elizabeth, to provide a keg of beer at a party the daughter was having at their home for some of her high school classmates. Mrs. Hutchings (hereinafter the "hostess") observed Carlton Turner, age 17, engaged in a drinking game called "quarters." ¹ When Turner (hereinafter the "minor driver") left at about 11:30 p.m. the beer keg was empty and he was noticeably intoxicated, having consumed the equivalent of seven bottles of beer. When the minor driver said goodbye, the hostess expressed concern over his driving ability. The hostess watched the minor driver get into his car.

defendants' motions for summary judgment, showed the following:

A few minutes and less than 4 miles away, the intoxicated minor driver sped through a red light and killed David Sutter.

The victim's widow filed suit in her individual capacity and as executrix of her husband's estate for wrongful death and injuries to the deceased against the minor driver as well as against his stepfather under the family purpose car doctrine. By amendment, the hostess and her daughter were added as defendants, at which point the minor driver and his stepfather filed cross actions against them.

The defendant hostess and her daughter moved for summary judgment against plaintiff and the minor driver and his stepfather. The trial court granted summary judgment against the plaintiff, but denied summary judgment as to the cross actions. Finding in favor of the hostess and her daughter, the Court of Appeals affirmed as to the plaintiff and reversed as to the cross actions, and this court granted certiorari.

1. The Court of Appeals relied upon a series of cases emanating from Belding v. Johnson, 86 Ga. 177, 12 S.E. 304 (1890), in holding that one who furnishes alcohol to another who in turn injures a third person is not liable to the injured party. Each of those cases is distinguishable, ² but distinguishing them does not answer the question at issue: Is there a cause of action? For the answer to this question, we must examine common law principles.

The hostess and her daughter argue the common law rule that no tort cause of action arises against one who furnishes intoxicating liquor to a person who thereby voluntarily becomes intoxicated and in consequence of such intoxication injures himself or another. See Keaton v. Kroger Co., 143 Ga.App. 23, 237 S.E.2d 443 (1977), discussed in the appendix; Anno., 97 A.L.R.3d 528, 533 (1980). ³ However, we are not dealing with a situation where these defendants simply furnished alcohol to a person who thereby voluntarily became intoxicated; we deal with a situation where these defendants furnished alcohol to a person who the defendants knew would soon be driving his car and who was noticeably intoxicated when the alcohol was furnished. ⁴

Numerous courts have recognized, as a matter of common law, that a person who furnishes alcohol to a noticeably intoxicated person, knowing that such person will soon be driving his or her vehicle, is liable for injuries caused to third persons by the negligence of such intoxicated driver. Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219, 1228 (1984), ("[W]here the social host directly serves the guest and continues to do so even after the guest is visibly intoxicated, knowing that the guest will soon be The traditional formula setting forth the elements of negligence are:

driving home, the social host may be liable for the consequences of the resulting drunken driving."); Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15, 19 (1976), ("[A] jury might well determine that a social host who serves excessive amounts of alcoholic beverages to a visibly intoxicated minor, knowing the minor was about to drive a car on the public highways, could reasonably foresee or anticipate an accident or injury as a reasonably foreseeable consequence of his negligence in serving the minor."); Coulter v. Superior Court of [254 Ga. 196] San Mateo County, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669, 674 (1978), ("We think it evident that the service of alcoholic beverages to an obviously intoxicated person by one who knows that such intoxicated person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highway."); Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, 159 (1971), ("[I]t is clear that the furnishing of an alcoholic beverage to an intoxicated person may be a proximate cause of injuries inflicted by that individual upon a third person."); Taylor v. Ruiz, 394 A.2d 765, 766 (Del.1978), ("[O]ne who furnishes alcoholic beverages to any person who already appears to be under the influence can be held liable in tort for negligence for any damages proximately caused by the patron as a result of such intoxication."); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 8 (1959), ("When alcoholic beverages are sold by a tavern keeper to a minor or to an intoxicated person, the unreasonable risk of harm not only to the minor or the intoxicated person but also to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent."); Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290, 293 (1965), ("[T]he consequences of serving an intoxicated person who drives an automobile more alcohol, were easily foreseeable to the reasonable person."); Holmquist v. Miller, 352 N.W.2d 47 (Minn.App.1984); Bernhard v. Harrah's Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719, cert. denied 429 U.S. 859, 97 S.Ct. 159, 50 L.Ed.2d 136 (1976); Ono v. Applegate, 62 Haw. 131, 612 P.2d 533 (1980); Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980); Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963); Elsperman v. Plump, 446 N.E.2d 1027 (Ind.App.1983); Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18 (1968); Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920 (1982); Waynick v. Chicago's Last Dept. Store, 269 F.2d 322 (7th Cir.1959) (applying Michigan law); Young v. Gilbert, 121 N.J.Super. 78, 296 A.2d 87 (1972); Figuly v. Knoll, 185 N.J.Super. 477, 449 A.2d 564 (1982); Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982); Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977); Jardine v. Upper Darby Lodge, 413 Pa. 626, 198 A.2d 550 (1964); Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980); Anno., 97 A.L.R.3d 528, 533 (1980). ⁵

"1. A duty, or obligation, recognized by the law, requiring the actorto conform to a certain standard of conduct, for the protection of others against unreasonable risks.

"2. A failure on his part to conform to the standard required....

"3. A reasonable close causal connection between the conduct and the resulting injury....

"4. Actual loss or damage resulting to the interests of another." Prosser, Law of Torts, 4th ed., § 30 (1971) (footnotes omitted); see Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982). Of the four, duty, breach of duty, proximate cause, and actual damage, only the first and third are in issue here.

A person owes to others a duty not to subject them to an unreasonable risk of harm. Bradley Center v. Wessner, supra, 250 Ga. at 201, 296 S.E.2d 693. More specifically, OCGA § 3-3-22 provides that "No alcoholic beverage shall be sold ... given It could be argued that the duty or obligation created by these Code sections runs only to persons noticeably intoxicated or under 19, and not to others. However, in view of risks involved and the General Assembly's efforts to control drunk driving for the protection not only of those drivers but others on the highways, we conclude that these statutory duties protect third parties as well as those noticeably intoxicated and under 19. OCGA §§ 3-3-22, 3-3-23, supra, provide the duty, not the cause of action. However, OCGA § 51-1-6 provides: "When the law requires a person ... to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby." We therefore find that the defendant hostess and her daughter owed a duty to those using the highways not to subject them to an unreasonable risk of harm by furnishing alcohol to a person under 19 who was noticeably intoxicated and who these defendants knew would soon be driving his car.

provided, or furnished to any person who is in a state of noticeable intoxication," and OCGA § 3-3-23(a)(1) provides that "No person knowingly, by himself or through another, shall furnish [or] cause to be furnished ... any alcoholic beverage to any person...